Montreal Institute for Genocide and Human Rights Studies

Professional Training Program on the Prevention of Mass Atrocities

18-20 June 2014Montréal, Quebec, Canada

DAY 1 - 18 June 201410:00 - 11:30 Session 1:

International Law and the Genocide ConventionBruce Broomhall

Genocide: an international legal perspective

What is the status of genocide in international law?

What is the (most important) source of applicable rules?

What are the legal consequences of a breach of the rules?

Genocide: status

Who commits genocide? States Individuals

Legal persons? Corporations? An internationally wrongful act of State An act giving rise to individual criminal

responsability

The international crime of genocide I What is a crime?

Something to be proven beyond a reasonable doubt by a prosecutor, with penal consequences

What are the elements of a crime? Material element or actus reus

Conduct (act or omission), circumstance, consequence Moral element or mens rea

Intention, knowledge (other?)

The crime of genocide and other international crimes

Distinguished primarily in light of their international or contextual element: Genocide Crimes against humanity War crimes The crime of aggression Torture Enforced disappearance

Convention on the prevention and punishment of the crime of genocide

Was the crime of genocide included in the Statute of the International Military Tribunal that sat at Nuremberg? How did it emerge following the 1946 Nuremberg Judgment?

Adopted by the United Nations General Assembly in December 1948

Entered into force in January 1951 146 parties What is the relationship between genocide and

crimes against humanity today?

Genocide Convention, art. I

The Contracting Parties , Having considered the declaration made by the General Assembly of the United Nations in its resolution 96 (I) dated 11 December 1946 that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world, Recognizing that at all periods of history genocide has inflicted great losses on humanity, and Being convinced that, in order to liberate mankind from such an odious scourge, international co-operation is required, Hereby agree as hereinafter provided : Article I The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.

Genocide Convention, art. I (continued)In the eyes of the International Court of Justice, in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), judgment (26 February 2007), this article prohibits States Parties from committing genocide.

NB: Nicaragua c. États-Unis (1986): The ICJ requires proof that the U.S. ordered violations of the laws of war committed by the Contras. Beyond financing, furnishing equipement, training and advice, it had to be shown that the U.S. had effective control over the operations involving the violations. Otherwise, these violations cannot be attributed to the U.S. in order to give rise to its international State responsability.

Article 8 Conduct directed or controlled by a State

The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or

under the direction or control of, that State in carrying out the conduct. - International Law Commission, Draft articles on the responsibility of States for internationally wrongful acts (2001)

Genocide Convention, art. II

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

Genocide Convention, art. II (continued) What is the contextual or international element of the

crime of genocide? None on the material level of the actus reus

But see the Elements of Crimes annexed to the Rome Statute of the International Criminal Court:

“The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction”

The defining contextual / international element of the crime of genocide is that of the intent to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.

Genocide Convention, art. II (cont. 2) Special intent / dolus specialis in addition to that required for the

underlying crime One of the enumerated groups only:

Akayesu – definition of groups as stable and permanent, of which one becomes a member often by birth and not by choice

Question: cultural genocide (included in the initial Expert Draft), the extermination of political or social groups

Intent to destroy, not only e.g. to expel from a given territory Jelisic – high threshold; one can intend to expel by force and even intentionally kill

a number of people, but the specific intent to commit genocide must still be proven ‘In whole or in part’: intent (only) to destroy a substantial part:

Krstic – murder of men of military age at Srebrenica; the intent to destroy a group ‘in part’ may be made out if the accused viewed the group as a distinct entity. Here, the murders of the men took place at the same time as the expulsion of the women, children and elderly people. Hence, the intent to prevent the re-establishment of the community.

Genocide Convention, art. II (cont. 3) Conduct et consequences – the 5 enumerated acts:

Members of the group, without requiring a very high number

Physical destruction is not required for e.g. transferring children (a form of cultural genocide?)

Can the destruction of cultural monuments help establish genocidal intent?

Akayesu – inclusion of rape (et of other acts, such as torture) in “serious bodily or mental harm”

Genocide as a crime of customary international law whose definition has repeatedly been affirmed

Genocide Convention, art. III

Article III The following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.

Genocide Convention, art. III (continued)

Article III enumerates certain inchoate offences, that is, acts which remain criminal even though the offense to which they are related remains incomplete: conspiracy, direct and public incitement, attempt.

This establishes one link between criminal prosecution and prevention.

Genocide Convention, art. IV-V

Article IV Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals. Article V The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.

Genocide Convention, art. VI

Article VI Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

What were the prospects for establishing a permanent international criminal court in 1948?What was the state of universal jurisdiction at the time?

Eichmann, 1961

Genocide Convention, art. VI (cont.)Comparison:International Convention for the Protection of All Persons from Enforced Disappearance 2006Article 9 1. Each State Party shall take the necessary measures to establish its competence to exercise jurisdiction over the offence of enforced disappearance: ( a ) When the offence is committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; ( b ) When the alleged offender is one of its nationals; ( c ) When the disappeared person is one of its nationals and the State Party considers it appropriate. 2. Each State Party shall likewise take such measures as may be necessary to establish its competence to exercise jurisdiction over the offence of enforced disappearance when the alleged offender is present in any territory under its jurisdiction, unless it extradites or surrenders him or her to another State in accordance with its international obligations or surrenders him or her to an international criminal tribunal whose jurisdiction it has recognized. 3. This Convention does not exclude any additional criminal jurisdiction exercised in accordance with national law.

Genocide Convention, art. VII

Article VII Genocide and the other acts enumerated in article III shall not be considered as political crimes for the purpose of extradition. The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force.

Genocide Convention, art. VIIIArticle VIII Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III.

NB: The duty to preventSee the general statement in art. 1. The ICJ, (Bosnia and Herzegovina v. Serbia and Montenegro, judgment, 2007), affirmed the existence of a duty to prevent separate and apart from the duty to punish. This is a duty of diligence, of acting within one’s means in order to affect the conduct of those under one’s control or influence, including outside a given State’s own borders.

Genocide Convention, art. IX-XArticle IX Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute. Article X The present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall bear the date of 9 December 1948.

Genocide Convention, art. XIArticle XI The present Convention shall be open until 31 December 1949 for signature on behalf of any Member of the United Nations and of any non-member State to which an invitation to sign has been addressed by the General Assembly. The present Convention shall be ratified, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations. After 1 January 1950, the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State which has received an invitation as aforesaid. Instruments of accession shall be deposited with the Secretary-General of the United Nations.

Genocide Convention, art. XIIArticle XII Any Contracting Party may at any time, by notification addressed to the Secretary-General of the United Nations, extend the application of the present Convention to all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible.

Genocide Convention, art. XIIIArticle XIII On the day when the first twenty instruments of ratification or accession have been deposited, the Secretary-General shall draw up a procès-verbal and transmit a copy thereof to each Member of the United Nations and to each of the non-member States contemplated in article XI. The present Convention shall come into force on the ninetieth day following the date of deposit of the twentieth instrument of ratification or accession. Any ratification or accession effected subsequent to the latter date shall become effective on the ninetieth day following the deposit of the instrument of ratification or accession.

Genocide Convention, art. XIV-XVArticle XIV The present Convention shall remain in effect for a period of ten years as from the date of its coming into force. It shall thereafter remain in force for successive periods of five years for such Contracting Parties as have not denounced it at least six months before the expiration of the current period. Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations. Article XV If, as a result of denunciations, the number of Parties to the present Convention should become less than sixteen, the Convention shall cease to be in force as from the date on which the last of these denunciations shall become effective.

Genocide Convention, art. XVIArticle XVI A request for the revision of the present Convention may be made at any time by any Contracting Party by means of a notification in writing addressed to the Secretary-General. The General Assembly shall decide upon the steps, if any, to be taken in respect of such request.

Genocide Convention, art. XVIIArticle XVII The Secretary-General of the United Nations shall notify all Members of the United Nations and the non-member States contemplated in article XI of the following: (a) Signatures, ratifications and accessions received in accordance with article XI; (b) Notifications received in accordance with article XII; (c) The date upon which the present Convention comes into force in accordance with article XIII; (d) Denunciations received in accordance with article XIV; (e) The abrogation of the Convention in accordance with article XV; (f) Notifications received in accordance with article XVI.

Genocide Convention, art. XVIIArticle XVIII The original of the present Convention shall be deposited in the archives of the United Nations. A certified copy of the Convention shall be transmitted to each Member of the United Nations and to each of the non-member States contemplated in article XI. Article XIX The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force.

Convention on the prevention and punishment of the crime of genocide

Positive aspects : unequivocal condemnation of this crime, concise definition, State duties to prevent, to legislate, to punish and to cooperate, application in times of both peace and war, recognition of ICJ jurisdiction, wide adhesion (cf. the status of crimes against humanity in 1948 and after)

Negative aspects : limited scope of criminal jurisdiction, weak mechanisms for ensuring application (no monitoring committee, assembly of States Parties, etc.)